A married couple in Ontario lives in constant fear that a stranger will gain access to their son because he donated the semen they needed to conceive. A man in Alberta fights to be declared a legal parent of his daughter after he and his partner split up. Parents in British Columbia wait months for their newborn son’s hernia operation because their names don’t appear on his birth certificate.

These heartbreaking cases have played out in Canada over the last few years and centre on a seemingly simple question: who is a parent?

But answering that becomes incredibly complex when the families involved don’t fit the traditional model. As more lesbian, gay, bisexual, transgender or queer (LGBTQ) Canadians have children using assisted reproduction and third-party donors — a semen donor, an egg donor, a surrogate, or a combination of these — legislators have been slow to catch up.

Canada’s patchwork of provincial laws and legislation can, at best, add stress and costly extra steps and, at worst, cause heartache and distress for the many LGBTQ people trying to have a child. And, while heterosexual people who use donors face many of the same challenges, non-traditional families who have little choice in how to have children are disproportionately affected.

And, depending on the province, some legislation is downright discriminatory, lawyers claim.

“We lived in a fog for almost two years. We got to enjoy our son for just about four months, and then everything was destroyed. And we’ll never get that time back,” says Sandra from the home she shares with her wife Tammy in northern Ontario.

“I didn’t know I should get my law degree just to start a family.”

In recent years, fertility lawyers across the country have seen a growing number of LGBTQ clients. Legal assistance has essentially become mandatory as parents dole out thousands of dollars for donor contracts, parental declarations, second-parent adoptions, and seek help with either trying to understand the laws in their jurisdiction or with damage control when things go awry.

One of the biggest questions fertility lawyers have to grapple with is “who is a parent,” says Sara Cohen, founder of Fertility Law Canada.

“I’ve heard some people refer to it as one of the biggest questions of our time.”

SANDRA AND TAMMY

The room was spinning. The world was turned upside down. Sandra was about to pass out.

A few moments earlier she had been sitting on her couch in her northern Ontario home, peacefully breastfeeding her infant son in the late afternoon winter light, when the doorbell rang. Sandra’s wife, Tammy, answered. A document server handed them an envelope and left.

Sandra was in shock as she read the documents. The man who agreed to donate his semen so the women could do a home insemination, and who signed a contract saying he’d have nothing to do with the child, had changed his mind.

He wanted to have the boy for birthdays and Christmases; summers, March breaks and weekends — all the special occasions.

“I freaked out. I didn’t know what the hell was going on. . . . I didn’t sign up for any of that,” Sandra recalls.

And as she realized the contract they’d signed meant nothing, she was devastated.

The next two years were filled with legal battles and Sandra and Tammy were constantly looking over their shoulders, fearful they’d run into the donor or his parents, feeling scrutinized by others in their small town as word about their case spread.

They sold their trucks, their boat, their trailer, their ATVs, their camping equipment — everything they’d saved for and bought for family trips together as their son grew older — to pay mounting legal fees.

“What he essentially did is he robbed us of the first two and a half years of our son’s life. He robbed us of the pure enjoyment of just having this precious baby and just raising him and just, you know, being a family,” Sandra says.

“If I had known for one second that the contract wouldn’t hold up in court, I would never have done it.”

Sandra and Tammy are pseudonyms chosen by the Herald. The women’s names, that of their children and any information that might identify them are protected by a publication ban.

When Sandra and Tammy first started talking about having children, they looked into using an anonymous sperm donor but decided they couldn’t afford it.

So Sandra asked a former elementary-school classmate if he’d consider donating semen. She knew he was gay and the thinking was that one day she could return the favour for him and be a surrogate if he wanted children.

He agreed and they drafted and signed a contract stating he would have no parental rights. They never consulted a lawyer.

“We weren’t looking for a daddy for our child. We were looking for a sperm donor. And he agreed,” Sandra says.

The home inseminations began when Sandra next started ovulating.

It took 16 months for Sandra to get pregnant — an amount of time that “would have cost a fortune” had they used anonymous sperm, she says.

When Sandra found out she was pregnant, she called the donor. He congratulated her. They didn’t speak again until six weeks after Sandra and Tammy’s son was born. He congratulated her again.

And that was that, Sandra thought, until the doorbell rang.

According to a research review by University of British Columbia law professor Fiona Kelly, it’s likely that between 20 to 30 per cent of lesbian couples in Canada, the United States and Australia conceive using sperm of a known donor, and most of those inseminations occur at home.

Lesbian women choose home inseminations for three main reasons, Kelly reports in her 2010 research paper “An Alternative Conception: The Legality of Home Insemination under Canada’s Assisted Human Reproduction Act.” The most common is that it allows lesbian women to use known donors, and there are a number of barriers to doing so at fertility clinics — especially if the donor is gay or over the age of 40.

The second reason is it avoids the “medicalization of conception” in clinics designed to treat women with fertility issues, Kelly says. Finally, there are the cost savings: using donor sperm costs between $800 and $1,400 per attempt, Kelly says, and most women take at least six attempts to become pregnant.

“For low-income lesbian and single women, it may be the only feasible route to conceive,” Kelly says.

But having a known donor adds serious legal ramifications. Lawyers recommend that all parties sign a donor contract — just as Sandra and her donor did — and yet the validity of these contracts has never been tested in Canada. All they do is show intent.

“A donor agreement is the best evidence you’re ever going to have of the intentions of the parties before the child is born, before the donation was made, about who is the parent, why are we doing this,” says lawyer Sara Cohen.

Sandra and Tammy’s case would have been the first to test what intent means when a sperm or egg donor later changes their mind, and lawyers across the country were watching the case closely. The crux of the would-be trial — whether or not the parties should be bound by the contract they made — would have been precedent-setting.

“I think a lot of people had a lot of different opinions about whether or not that argument was going to be successful, but the court had an opportunity there to comment on the state of our legislation, that Ontario’s parentage laws have some gaps in them. That our parentage laws do not support same-sex families,” says fertility lawyer Michelle Flowerday, who represented Sandra and Tammy.

But the case never went to court. The women settled with the donor in April — agreeing that he and his parents would have one supervised visit with the child, in a public place, would not reveal who they are or initiate physical contact, and then never see him again.

So Canadian lawyers were left with the confusing sets of legislation.

British Columbia, Alberta, Quebec, Prince Edward Island and Newfoundland all have legislation specifying a sperm donor isn’t automatically considered a parent.

This is the model other provinces should be following, Cohen says.

“The legislation we’re using in pretty much all the other provinces was not really meant to be used for same-sex families. And it was definitely not meant to be used for assisted reproductive technology family building. It was really meant for kind of 30-plus years ago, building families the old-fashioned way,” Cohen says.

“The legislation doesn’t even contemplate this. That’s the exact problem. It needs to contemplate this, because it is a reality.”

Months after they signed the negotiated agreement, Sandra and Tammy still question their decision to settle out of court. On the one hand, they had to do what was best for their family. And it would save them the cost of going to trial.

But if they had won — and now Sandra believes they would have — they might have been able to save other families from going through the same torment.

“Laws would have changed in this province, if not the entire country. And I feel kind of like I let those people down who are coming behind us,” says Sandra, who gave birth to another baby boy in the spring. He was conceived using anonymous donor sperm.

MR. R VERSUS MR. H

Until every province has comprehensive legislation on assisted reproduction, affected families will have no choice but to turn to the courts, says Nicholas Bala, a family law expert with Queen’s University.

“If consenting parents are undertaking a parenting project to have a child then the law should recognize and reinforce that,” Bala says.

Much of the existing legislation contains deficiencies and grey areas that leave lawyers and judges grappling with these issues without much guidance, Bala says.

In July of this year, the Alberta Court of Appeal upheld a 2011 ruling that declared a gay man a legal parent of a 10-year-old girl even though it was his former partner’s sperm that was used to create the child.

Two gay men, R and H, wanted a child and enlisted the help of their friend, a lesbian woman known in court documents as D.

She used R’s sperm to become pregnant and had a child in 2003.

The two men raised the girl for the first few years of her life. But they broke up when the child was three, and H moved out.

Shortly after, R and the girl’s birth mother put together a parenting agreement that declared themselves the only guardians, with R having primary responsibility. When H found out, he applied for a contact order but was denied.

Battles between the three parties went on in court for years. It was only after a 2009 trial that the trio found out that, under the wording of Alberta’s former legislation, the birth mother, D, was the child’s only legal parent. R then applied for, and became, the child’s legal guardian in 2010.

So H filed a motion arguing that Alberta’s legislation violated the equality guarantee in the Charter of Rights and Freedoms. In October 2011, a court agreed with him.

“(Alberta’s former legislation) fails to contemplate parenting involving same-sex couples as well as situations involving reproductive technology,” the judge stated in the decision.

The judge made all three adults the child’s legal parents. By then, the Alberta government had already amended its Family Law legislation to recognize both fathers in situations involving gay couples who use a surrogate to bear their child, explains Calgary-based fertility lawyer Ellen Embury.

The girl’s biological father and mother appealed, but the Alberta Court of Appeal upheld the decision this summer. By then, Alberta law had been amended again to say that a child can only have two parents, but the original decision still applied, Embury says.

What the trial decision did was recognize that Alberta’s previous legislation was discriminatory against gay men, Embury says. And the court of appeal confirmed recognition of the intent to parent, she says.

“If you think about it, when you look at a gay men or a lesbian couple, that is the most profound example of the intent to parent, because they have to go through all of these hoops to have a child,” she says.

But in Alberta at least one intended parent has to be genetically related to the child, Embury says, and the legislation should recognize situations where neither parent has a biological link, as is the case in B.C. and Ontario.

“That’s a fight that frankly I’ve been looking to have for three or four years,” Embury says.

A number of cases in Canada have recognized the concept of parenthood is broader than biology, Bala says. For instance, in 2007, the Ontario Court of Appeal allowed three parents to be listed on a birth certificate: the biological mother, the mother’s lesbian partner, and their friend who donated his sperm.

RICHARD AND ANTHONY

Sometimes, not being recognized as a parent is more than just a legal problem.

For Richard Abgrall and Anthony Mehnert, it created a medical one.

The two men had to wait four months for a hernia operation for their infant son Mason because they were not listed as legal parents of the boy and his twin brother Declan.

During the excruciating wait for surgery, Mason’s intestines would bulge out into his lower abdomen every time he cried. The men became quite adept at pushing them back into place each time.

“We did not have medical coverage because they were legally not ours, so my medical plan hadn’t kicked in and they had not been assigned proper B.C. medical ID cards. They were deemed illegal aliens, basically,” Mehnert says from Vancouver.

“Mason was in a lot of pain. But the doctor had taught us, when he would relax, how to push all his intestines back in.”

In cases where parents use a surrogate or a known sperm donor to have a child, those parents will almost always be required to apply for a parentage declaration from a judge to remove the surrogate or donor’s name from the child’s birth certificate and ensure their names get on it.

In every province except British Columbia, the legal presumption is that the woman who gives birth is the child’s legal parent. This is problematic for parents who require a surrogate to carry their child. And the absence of legal parentage can affect a parent or child’s legal rights on everything from citizenship and custody to medical decisions.

In most provinces, the process of parentage declaration is simpler, faster, and less expensive than adoption. And many people have issues with having to adopt their own child, says lawyer Sara Cohen.

But there are major jurisdictional differences in terms of the length of time a parental declaration takes and the requirements. Some provinces such as B.C. and Alberta have specific legislation that simplifies the process, but others such as Ontario require a court appearance.

And in Quebec cases of surrogacy, parentage declarations aren’t even an option — the non-biological parent has to adopt.

In Alberta, a declaration of parentage costs about $3,700 and can be completed within six days from the birth, says Embury. It’s more expensive in other provinces such as Ontario and Saskatchewan where the process can take up to six weeks and the courts may require DNA testing, Embury says.

Some provinces such as Alberta require at least one intended parent to be related, while others such as Manitoba will usually require both parents to be genetically related to make a parentage declaration, Embury says — which is discriminatory toward gay men, she adds.

“To me, this smacks of charter violations,” she says.

The fact that B.C. no longer presumes that the woman who gives birth is the legal parent has eliminated the necessity for parentage declarations in that province, Embury says. The intended parents can go on the birth certificate as long as there is a written agreement between them and the surrogate prior to conception and she consents to the surrender post-birth.

“That is the direction the rest of the country should be going in,” Embury says.

“Ironically, it’s going to mean that a lot of fertility lawyers have much smaller practices because obviously once we eliminate the parentage declaration process, there’s far less for us to do. But it’s the right thing to do.”

Vancouver twins Mason and Declan were born in late 2009 — four years before B.C.’s recent legislative changes.

The boys were seven weeks premature. Mason was 3 pounds 3 ounces, Declan was 2 pound 10 ounces, and their fathers were terrified.

The surrogate’s name automatically went on temporary birth certificates for the boys. Mehnert and Abgrall needed to petition the courts to get her name removed and theirs added.

But the boys were hospitalized for the first two months, and Mehnert and Abgrall — who hadn’t hired a lawyer — weren’t able to get to it right away.

It was shortly after the boys went home from hospital that Mason developed a hernia. Two days before Mason was to go in for surgery, the surgeon’s office cancelled, Mehnert says.

“The boys had no medical coverage so they couldn’t do it. So we called the doctor and we couldn’t get past the receptionist. She wouldn’t connect us at all. And we didn’t know what to do,” Mehnert recalls.

By then, the courts were backed up, Mehnert says. He went directly to the ministry of health to try to get health cards for the boys, but the government told them they’d first need proper birth certificates, Mehnert says.

“I’m trying to apply my health-care benefits to my child and they’re saying it’s not your child. That child is not legally yours,” he says.

By now the boys were seven months old and still didn’t have proper birth certificates. Finally, after Mehnert pleaded with a woman at the ministry of health, Mason was issued a temporary health card number.

He had the surgery a week later — more than four months after he was diagnosed.

Today, the boys are four years old. Declan is gregarious and loud, happy to chatter with strangers. Mason is more of a quiet thinker who’s content to flip through picture books.

On their birth certificates, Abgrall and Mehnert are now listed as “parents.”

But the boys call Abgrall “Daddy” and Mehnert “Papa.”

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Part 2: Patchwork of Canadian laws creates confusion in determining parental rights for gay and lesbian parents

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